Recognition - Belligerent recognition

Because recognition applies to belligerency as well as to state
governments, precise discrimination and timing must be paid to the facts
in a civil war. Premature recognition of political parties seeking to
establish a state separate from a parent state may be deemed tortious or
delictual, if not actual intervention, and may even lead to war with the
parent state, which is vested with the presumption of right until the
rebels triumph. The writing of the Treaty of Amity and Commerce (1778)
between France and the rebellious British subjects in America resulted in
a war between France and Great Britain, as France intended. The United
States threatened war because of what it believed to be too prompt a
recognition of belligerency of the Confederate States of America by Great
Britain, and Colombia assumed a very aggrieved stance after what appeared
to it as the precipitous—six hour—recognition by the United
States of the Panama Republic in 1903. In contrast, belated recognition of
eventually victorious rebels may result in unpleasant relations, such as
those attending the unwillingness of the United States to recognize for a
dozen years the Latin American republics that seceded from Spain, Texas
throughout 1836, Mexico at times between 1913 and 1923, the Soviet Union
from 1917 to 1933, Manchukuo from 1932, the People's Republic of
China from 1949 to 1972, and East Germany from 1945 to 1974.

The test applied to belligerents, unless the parent state has stopped
trying to impose its authority or has assented to its loss of sovereignty,
is whether they have created a separate political existence capable of
maintaining order at home and worthy of respect from abroad. Applicable to
rebellions or secessions seeking independence is the formula stated by
Secretary of State John Quincy Adams when writing to the American minister
to Colombia on 27 May 1823: "So long as a contest of arms with a
rational or even a remote prospect of eventual success, was maintained by
Spain, the United States could not recognize the independence of the
colonies as existing de facto without trespassing on their duties to Spain
by assuming as decided that which was precisely the question of the
war." By prematurely recognizing the independence of the Latin
American republics, Adams might give Spain justification for declaring war
and for not negotiating with the United States for the release of the
Floridas. On the other hand, if he recognized the Latin Americans too
late, he would arouse resentment in their governments and also lose trade
to active British rivals. Consequently, he devised the "utterly
desperate" formula. "It is the stage," he wrote
President James Monroe on 24 August 1818, "when independence is
established as a matter of fact so as to leave the chances of the opposite
party to recover their dominion utterly desperate." After Spain
protested the intention of the United States to recognize the revolted
provinces as independent, Adams replied that American policy was to
recognize as independent states "nations which, after deliberately
asserting their right to that character, have maintained and established
it against all the resistance which had been or could be brought to oppose
it."

Timing is important, as the Texas revolution against Mexico and the
American Civil War reveal. Friction between U.S. settlers and the Mexican
government provoked a revolution in 1835. President Andrew Jackson
remained neutral until 3 March 1837, the last day of his administration,
when he recognized the independence of Texas, announced in 1836. When
Mexico protested that recognition, Secretary of State John Forsyth replied
that it was the policy of the United States to recognize de facto
governments. For seven years an independent Texas had been recognized by
at least the United States, Great Britain, and France but not by Mexico,
which had repeatedly stated that its annexation by the United States would
mean war. The question of recognition became academic when the United
States annexed Texas in 1845 and, in the treaty ending the Mexican War,
won confirmation of its title to the former republic.

Until the Civil War, the United States looked upon secessionist activity,
such as that of the Latin American states, as following its own
revolutionary model. Moreover, it frowned upon the monarchical principle
and objected especially to the forcible maintenance of monarchical
legitimacy in the New World. In brief, rebellion against monarchy was not
illegal; it was the assertion of natural right. During the American Civil
War, although the shoe appeared to be on the other foot, the Union refused
to change its historic policy with respect to the recognition of
belligerency or, for that matter, the duty of neutrals.

On 19 April 1861, President Abraham Lincoln proclaimed a maritime blockade
of seven seceded southern states. By thus granting the Confederacy the
status of belligerent, he elevated a domestic disturbance to a
full-fledged war and recognized the Confederacy as an
"apparent" international entity, or "embryonic
state," or "local de facto government" possessed of
all the rights of a state with respect to the conduct of war. Although the
Union never recognized the belligerency of the Confederacy, the U.S.
Supreme Court decided, in the prize cases (1863), that the Confederacy was
engaged in a civil war.

With two parts of the United States at war, third states could agree that
the as yet ineffective blockade was legal and thereby uphold the Union;
could recognize the Confederacy as a belligerent by proclaiming
neutrality; could recognize the Confederacy as an independent state and
invite war with the Union; or could do nothing and leave their
international relations to the vicissitudes of an ill-defined
international law.

Particularly involved was Great Britain, whose ubiquitous ships could be
captured by Union ships enforcing the blockade. Its decision to remain
neutral—based upon the announced Union blockade, President
Jefferson Davis's proclamation of the intent of the Confederacy to
exercise the rights of a belligerent, and upon its own Foreign Enlistment
Act of 1819—was followed by all the major powers. Such neutrality
gave the Confederacy both a morale boost and hope for eventual recognition
as being independent, because both belligerents were placed on a legal
par; the Confederacy could license privateers, send ships to the ports of
recognizing powers, exercise the right of visit and search at sea, seek
foreign loans, conduct a blockade, and seize contraband. The British
proclamation was issued on 6 May 1861. Had the British waited until after
the Union defeat at the second Battle of Bull Run, they might have opted
for recognition of independence instead of merely belligerency.

Instead, in July 1862, when a representative asked Britain to recognize
the Confederacy as a separate and independent power, the prime minister,
Henry John Temple, Lord Palmerston, advised Earl John Russell, the foreign
minister, that recent military reverses indicated that the time for
recognition had not yet come. Russell therefore replied that "In
order to be entitled to a place among the independent nations of the
earth, a State ought to have not only strength and resources for a time,
but afford promise of stability and permanence." On the other hand,
when the Union protested Britain's having any relations with the
Confederacy, Russell stated that the protection of British interests there
might cause him to deal with the Confederate capital and even with
southern state capitals, "but such communications will not imply
any acknowledgment of the Confederacy as a separate state." The
French took the same attitude, so that both Britain and France
acknowledged that belligerents obtain their rights from the fact of war
rather than from recognition.

Following the crushing Union defeat at the second Battle of Bull Run,
Palmerston suggested to the French a joint mediation proposal that
Washington accept as an "arrangement on the basis of a
separation." The ability of the Union to hold southern forces at
Antietam Creek, Maryland, blunted British and French ardor for this
proposal. Resolution of the question of recognition had thus depended upon
a military victory over the North that attested to the viability of the
South as a community warranting membership in the international sphere.
Then, as an example of how moral and humanitarian elements may alter a
situation, Lincoln's Emancipation Proclamation drove all thought of
the recognition of the Confederacy from the minds of the leaders of the
major European powers.

The law of belligerent recognition attained maturity during the Civil War.
Because the historical policy of the United States was to remain neutral
in case of civil war, the Union secretary of state, William H. Seward,
took umbrage at the attempts by the European powers to recognize the
Confederacy. He denied that the southern rebellion amounted to a state of
war, and saw no need for foreign action even if a state of war existed. On
28 February 1861, he instructed U.S. ministers abroad to counter any
suggestion of recognition and to ask foreign powers to "take no
steps which may tend to encourage the revolutionary movement of the
seceding states; or increase danger of disaffection in those which still
remain loyal." In April he told the U.S. minister to Great Britain,
Charles Francis Adams, that European states customarily used the
collective method of granting recognition, a method not used in the
Americas.

Furthermore, Seward was inclined to treat recognition of even belligerency
as an unfriendly act, to the point that he pondered seeking compensation
for damages done by a premature grant of belligerent rights, which he
viewed, he told Adams, as interference with the sovereign rights of the
United States. Indeed, Seward asserted that a proclamation of neutrality
by Great Britain would challenge the right of the Union to protect its
government and territory, and that he would declare war on any nation that
recognized the independence of the Confederacy. Throughout the Civil War,
then, the policy of the United States with respect to the recognition of
belligerency remained consistent with earlier practice.

Consistency continued with respect to both Cuban revolutions. In 1875,
during the Ten Years' War, President Ulysses S. Grant told Congress
that the policy of the United States was to recognize de facto
governments. Cuba was not at the time "a fact" because it
lacked an effective and stable government. Therefore, it could not be
recognized. Similarly, President William McKinley told Congress on 11
April 1898 that "recognition of independent statehood is not due to
a revolted dependency until the danger of its being again subjugated by
the parent state has entirely passed away"—a rewording of
John Quincy Adams's "utterly desperate" formula.

The Spanish Civil War (1936–1939), "the most disputed case
of belligerent recognition since the American Civil War," presents
a special case illustrative of the abuse of power of recognition. Few will
deny that war existed and that a recognition of belligerency was in order.
Germany and Italy championed the rebel, pro-Catholic General Francisco
Franco, against the anticlerical Republican (Loyalist) regime supported by
the Russians and enjoying the sympathy of a goodly number of Americans. By
recognizing Franco two and a half years before the end of the war, much
too early to tell how the struggle would end, Adolf Hitler and Benito
Mussolini reversed the situation so that the lawful government became the
rebellious party. Most other countries simply stood by. Twenty-seven
European states banned the export of war materials and departure of
volunteers to Spain, and Britain announced its neutrality.

Although several thousand Americans volunteered to fight with the
Loyalists, such was the popular support for noninvolvement that the
administration of Franklin D. Roosevelt amended its neutrality laws to
cover civil wars and thus denied support customarily given to the
legitimate government, as in embargoing the export of munitions. When
Franco won in 1939, the United States recognized him de facto and took
steps to resume diplomatic relations suspended during the civil war.
Instead of the test of effectiveness being the free expression of popular
approval or of democracy, it was made to read effectiveness of
authoritarian control, or of dictatorship.

If the character of a civil war will be admitted to the Arab-Jewish
conflict in Palestine, that will serve as a fine example. The British
shifted responsibility for their League of Nations mandate over Palestine
on 3 December 1947, effective 15 May 1948, to the United Nations, which
late in 1947 adopted a partition plan vehemently opposed by the Arabs but
upheld by President Harry S. Truman. At midnight local time, 14 May 1948,
the provisional government of Israel proclaimed the existence of the
Republic of Israel that it had carved out of Palestine. Overriding
objections from the Department of State, disregarding the wishes of
Britain, France, and the Soviet Union, overlooking the nonrecognition of
Israel by strategically located and oil-rich Arab states, the general
fighting between Arabs and Jews throughout Palestine, and stating that he
did so in keeping with the principle of self-determination and for
humanitarian reasons, Truman extended de facto recognition when Israel was
but eleven minutes old. Perhaps his need to win the Jewish vote in the
fall elections stimulated his prompt action. After Israel held its first
elections, on 25 January 1949, Truman extended it de jure recognition six
days later. War between Israel and its Arab neighbors has been
intermittent since the Republic of Israel first saw light. At the
beginning of the twenty-first century the Palestinian leader Yasser Arafat
was demanding a Palestine state with the capital in Jerusalem and
sovereignty over shrines sacred to both Jews and Muslims—which
Israel would not let him have.

A most unexpected and exciting transfer of sovereignty occurred in
Yugoslavia beginning in September 2000. Elections held on 24 September
chose a fifty-six-year-old attorney, Vojislav Kostunica, rather than
Slobodan Milosevic, who had enjoyed thirteen years of autocratic and
corrupt rule. The latter asked for a runoff election and sent an aide to
summon Kostunica. When Milosevic said he had won the election, Kostunica
informed him that a constitutional court had ruled in his own
favor—information Milosevic lacked. In any event, a crowd of some
200,000 persons paraded in Belgrade and burned the parliament building,
with the army and police doing little to hinder them. On 6 October,
Milosevic admitted defeat. Following Kostunica's formal investiture
as president, the United States and western Europe quickly recognized him.
After holding out for several days, Russia and China extended recognition
as well.